PEOPLE v. MACKLE

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PEOPLE

v.

MACKLE

June 30, 2000

No. 204299

Oakland Circuit Court

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v

PATRICK J. MACKLE,

Defendant-Appellant.

Before: OConnell, P.J., and Kelly and
Whitbeck, JJ.

OCONNELL, P.J.

In this case, a jury convicted defendant of
twelve counts of first-degree criminal sexual conduct (CSC I),
MCL 750.520b(1); MSA 28.788(2)(1), and one count of kidnapping,
MCL 750.349; MSA 28.581. The trial court sentenced defendant to
fifteen to thirty years imprisonment, with credit for 2,799
days served, for kidnapping and to the same sentence for each CSC
I count. On appeal as of right, defendant contends that the
evidence adduced at trial was insufficient to support his
conviction under MCL 750.l520b(1)(f); MSA 28.788(2)(1)(f) (the
"personal injury" variety of CSC I), and that his CSC I
and kidnapping convictions cannot withstand double jeopardy
analysis. Defendant further argues that his extradition to
Michigan from Canada violated a treaty between our two nations,
as well as his right to a speedy trial. We affirm, but remand to
the trial court with instructions to amend the judgment of
sentence.

I

Complainant testified at trial that she met
defendant in April 1989, and that a relationship thereafter
ensued. She understood that defendant developed property,
promoted a rock band, and produced movies. According to
complainant, she ended the relationship in September 1989, but
defendant persistently attempted to remain in touch with her.
Complainant agreed to meet him in a restaurant on October 5,
1989. At that meeting, complainant told defendant that she did
not want to pursue the relationship further.

Complainant testified that defendant was
initially calm and polite that night, but that after dinner, in
the restaurant parking lot, defendant pulled her out of her car
and shoved her into his own. Defendant insisted on continuing the
conversation and began driving, over her objections. When
complainant struggled, defendant pulled over, tied her hands,
then continued to drive. According to complainant, she continued
to struggle, and defendant continued to subdue and constrain her
until they reached a motel in Port Huron. Defendant told her that
he was taking her to see some of his Mafia friends.

Complainant testified that at the motel, over
her further objections and resistance, defendant had sexual
intercourse with her while her hands were tied. According to
complainant, she tried to leave the room, but defendant
restrained her, bound her ankles with neckties, and tied her
wrist to his own. The following morning defendant announced that
he was going to have sex with her again. When she resisted, he
repeatedly struck her with an open hand and then forced her to
have intercourse. Afterward, the two argued furiously, and
defendant responded by strangling her with a necktie for a minute
or two. Defendant again forced her to endure sexual intercourse.
Complainant observed that defendant seemed to derive heightened
pleasure from her resistance.

Early in the afternoon, defendant tied
complainants hands and placed her back in his vehicle.
Defendant later untied her and allowed her to eat some pizza, at
which time he informed her that he would take her to see some
Mafia members, with whom she would remain until she agreed to
marry him. Complainant testified that she then tried to leave the
vehicle, but that defendant tied her up again and put her in the
back seat. Defendant also punched her leg and slapped her face.
He continued to drive around town until approximately 5:00 p.m.,
when he pulled behind a building, penetrated her digitally, and
then pushed her legs apart and performed cunnilingus.

Afterward, defendant drove to another motel in
Port Huron and obtained a room. Once inside, defendant told
complainant that if she "behaved," he would take her
home in the morning. Complainant reported that defendant then
asked her to perform oral sex on him, which she did, believing
her freedom depended on it. Afterward, defendant informed
complainant that if she became pregnant with his child, he would
terminate the pregnancy by punching her in the abdomen. In the
course of this discussion, defendant became angry and forced
complainant into a sauna that was in the room and turned it to
its highest setting. He knew that she was claustrophobic.
Defendant became frustrated when the sauna failed to function
properly, so he pulled her out, threw her onto the bed, and then
forced her to have intercourse.

Complainant testified that defendant informed
her that he was going to arrange for the Mafia to pick up and
kill a member of her family. He later took her to a restaurant,
but admonished her not to cause trouble. According to
complainant, the two brought the food back to the room, whereupon
complainant discovered a steak knife in the package and tried to
attack defendant with it, but defendant overpowered her.

The morning of the next day, October 7,
defendant again tied complainant up and forced her to have
intercourse. Defendant learned later in the day that
complainants father had asked the police to search for her.
Defendant then insisted that complainant make a call to quell the
investigation. Defendant threatened to direct a Mafia member to
kill her son, so complainant called defendants mother and
encouraged her to telephone complainants father and pass on
an innocent explanation concerning her whereabouts.

Afterward, defendant put complainant in his
vehicle, spent some time driving around, and then informed her
that because of the possibility of a missing person investigation
in the United States, he had made arrangements to have Mafia
members pick her up in Canada. He ordered her to drive across the
border because he lacked a valid drivers license. Under the
pressure of threats to her sons life, complainant drove
across the border without incident.

Complainant testified that she remained with
defendant in Canada from that afternoon until she escaped on
October 12. During this time, they remained in Canada and stayed
in a different motel every night. Defendant continuously forced
her to engage sexual intercourse with him. She recounted finally
leaving the motel by herself early in the morning of October 12.
Complainant explained that defendant told her that Mafia members
were going to kill her within a few days, and that he removed her
jewelry to make her body difficult to identify. She was able to
free herself while defendant slept. She left the motel in
defendants vehicle and called the police, and also her
family, from a nearby truck stop.

A Canadian court tried and convicted defendant
in connection with the events occurring in Canada, and defendant
served a sentence of at least five years in a Canadian prison. On
the expiration of defendants Canadian sentence, the Oakland
County prosecutor secured defendants extradition for trial
in Michigan.

II

Defendant first argues that, given his
conviction and sentence in Canada, his subsequent prosecution in
Oakland County violated the Treaty of Extradition between the
United States of America and Canada, 27 UST 983; TIAS 8237
("treaty" hereinafter), as well as the double jeopardy
prohibition of Const 1963, art 1, § 15. We first address
defendants contention that his subsequent prosecution in
Michigan violated the extradition treaty. An interpretation of
language contained in a treaty involves a question of law. Piamba
Cortes v American Airlines, Inc, 177 F3d 1272, 1280 (CA 11,
1999); Cook v United States, 86 F3d 1095, 1097 (Fed Cir,
1996); Wickman v Vinco Corp, 288 F2d 310, 312 (CA 6,
1961). We review questions of law de novo. People v Melotik,
221 Mich App 190, 198; 561 NW2d 453 (1997).

The fourth article of the treaty, in relevant
part, provides:

(1) Extradition shall not be granted in any of
the following circumstances:

(i) When the person whose surrender is sought
is being proceeded against, or has been tried and discharged or
punished in the territory of the requested state for the offense
for which his extradition is requested.

Defendant contends that the Oakland County
prosecutor violated this provision when he sought
defendants extradition from Canada for trial on the CSC I
and kidnapping charges.

Under US Const, art VI, cl 2, a treaty entered
into under the authority of the United States is the "the
supreme Law of the Land" to which "the Judges in every
State shall be bound . . . ." As
the United States Supreme Court has noted, the "treaties of
the United States are as much a part of the law of every State as
its own local laws and Constitution." Hauenstein v Lynham,
100 US 483, 490; 25 L Ed 628 (1880). Therefore, the courts of
this state must take judicial notice of any treaties of the
United States and enforce the rights granted therein in an
appropriate proceeding. United States v Rauscher, 119 US
407, 419; 7 S Ct 234; 30 L Ed 425 (1886).

However, a Michigan court was not the proper
forum for defendant to vindicate any rights granted to him in the
treaty. Article 4 provides that extradition "shall not be granted"
where, as here, the requesting state seeks the surrender of a
person who was previously tried and punished in the requested
state "for the offense for which his extradition is
requested." 27 UST 983, art 4(1)(i) (emphasis added). This
language implies that a defendant should seek to preserve his or
her rights under Article 4 in an appropriate tribunal of the
requested country (the country that would do the granting),
rather than the requesting country (as would be the case if the
treaty stated that "extradition shall not be sought").
As such, the treaty imposed a limitation on the requested state,
rather than the requesting state.

Article 8 of the treaty further supports our
conclusion where it states that "the determination that
extradition should or should not be granted shall be made in
accordance with the law of the requested State and the
person whose extradition is sought shall have the right to use
all remedies and recourses provided by such law" (emphasis
added). According to this language, a determination whether the
Oakland County prosecutor sought to extradite defendant for the
same offenses for which the Ontario court tried and convicted him
was a matter of Canadian law. Further, a Canadian court would
have been in a far better position to rule on issues arising
under Canadian law than would a court of our state. Therefore, we
conclude that defendants right to resist extradition was a
matter for a Canadian tribunal, rather than one of our state, to
resolve.

III

We next turn to defendants contention
that his prosecution in Michigan, subsequent to his trial and
conviction in Canada, violated the double jeopardy prohibition of
the Michigan Constitution. We review double jeopardy questions de
novo. People v Walker, 234 Mich App 299, 302; 593 NW2d 673
(1999). The Double Jeopardy Clauses of the federal and state
constitutions prohibit a criminal defendant from being placed
twice in jeopardy for a single offense. United States v Jorn,
400 US 470, 479; 91 S Ct 547; 27 L Ed 2d 543 (1971); People v
Burks, 220 Mich App 253, 256; 559 NW2d 357 (1996).

Our review of the record indicates that the
Oakland County prosecutors charges of kidnapping and CSC I
corresponded to the events that occurred in Michigan exclusively.
Similarly, defendants Ontario trial and conviction involved
only the acts that defendant committed in the town of Milton,
Ontario. Crown counsel charged defendant with counts of unlawful
confinement, sexual assault, choking complainant to enable him to
commit sexual assault, uttering a death threat, and unlawful
possession of complainants jewelry. Consequently, the
Oakland County prosecutor did not seek to extradite defendant for
the same offenses for which the Ontario court convicted and
sentenced him, with one possible exception.

Only the Ontario conviction for unlawful
confinement and the Michigan conviction for kidnapping raise
double jeopardy concerns. In a multiple-prosecution case where
one or more of the two offenses do not contain a specific
criminal intent as an element, to determine whether the two
convictions were for the same "offense," we look to
whether they arose out of the same criminal episode or
transaction and violated laws that sought to prevent a similar
type of harm. Crampton v 54-A Dist Judge, 397 Mich 489,
502; 245 NW2d 28 (1976); People v Hunt (After Remand), 214
Mich App 313, 315-316; 542 NW2d 609 (1995). In this case,
defendants act of confining complainant against her will
was continuous throughout the relevant time period, and both
statutes sought to prevent a similar harm (unlawful confinement).
In lieu of engaging a detailed review of Canadian law, we assume,
but do not decide, that they were the same offense for purposes
of our Michigan double jeopardy analysis.

Our state constitution affords broader
protection against double jeopardy than does the federal
constitution.[1]People v Harrington, 194
Mich App 424, 428; 487 NW2d 479 (1992). In the context of
prosecutions involving separate sovereigns, Michigan courts
interpret Const 1963, art 1, § 15 to prohibit "a
second prosecution for an offense arising out of the same
criminal act unless it appears from the record that the interests
of the State of Michigan and the jurisdiction which initially
prosecuted are substantially different." People v Cooper,
398 Mich 450, 461; 247 NW2d 866 (1976). See also People v
Childers, 459 Mich 216, 219; 587 NW2d 17 (1998). The factors
bearing on the question include an analysis of whether the
respective maximum penalties are greatly disparate, and whether
"some reason exists why one jurisdiction cannot be entrusted
to vindicate fully another jurisdictions interests in
securing a conviction, and whether the differences in the
statutes are merely jurisdictional or are more substantive."Cooper, supra at 461.

The Michigan kidnapping statute provides as
follows:

Any person who wilfully, maliciously and
without lawful authority shall forcibly or secretly confine or
imprison any other person within this state against his will, or
shall forcibly carry or send such person out of this state, or
shall forcibly seize or confine, or shall inveigle or kidnap any
other person with intent to extort money or other valuable thing
thereby or with intent either to cause such person to be secretly
confined or imprisoned in this state against his will, or in any
way held to service against his will, shall be guilty of a
felony, punishable by imprisonment in the state prison for life
or for any term of years.

Every offense mentioned in this section may be
tried either in the county in which the same may have been
committed or in any county in or through which the person so
seized, taken, inveigled, kidnaped or whose services shall be
sold or transferred, shall have been taken, confined, held,
carried or brought; and upon the trial of any such offense, the
consent thereto of the person, so taken, inveigled, kidnaped or
confined, shall not be a defense, unless it shall be made
satisfactorily to appear to the jury that such consent was not
obtained by fraud nor extorted by duress or by threats. [MCL
750.349; MSA 28.581.]

The relevant Canadian legislation reads, in
pertinent part, as follows:

Every one who, without lawful authority,
confines, imprisons or forcibly seizes another person is guilty
of

(a) an indictable offence and liable to
imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction
and liable to imprisonment for a term not exceeding eighteen
months. [RSC § 279(2)(1)(a)-(b)]

The Michigan kidnapping statute sets forth
several theories to support a conviction for kidnapping. People
v Wesley, 421 Mich 375, 383-384; 365 NW2d 692 (1984). The
Oakland County prosecutor alleged forcible confinement, malicious
intent, and asportation within the state. Thus, defendants
Michigan conviction required both malicious intent and
asportation. See Wesley, supra at 385-386. Neither of
these elements appear in the Canadian statute. The statutes also
differ in that they provide widely disparate maximum penalties.
The Michigan kidnapping statute authorizes life imprisonment,
whereas the Canadian unlawful confinement statute provides for a
maximum of ten years.

Further, the additional elements involved with
the Michigan kidnapping statute speak to a substantive, not
merely jurisdictional, difference from the Canadian unlawful
confinement statute. We also note that the Canadian authorities
prosecuted defendant under the Canadian unlawful confinement
statute, not the kidnapping statute that precedes it, RSC
§ 279(1). That the Canadian authorities eschewed the
latter, which much more closely resembled the Michigan kidnapping
statute, reflects a determination to vindicate Canadian interests
exclusively, and to defer the prosecution for kidnapping to the
jurisdiction in which the kidnapping began. Defendants
subsequent prosecution for kidnapping, therefore, did not violate
the double jeopardy prohibition of the Michigan Constitution.

IV

We next address defendants assertion that
the prosecutor failed to produce sufficient evidence to satisfy
the "personal injury" element of MCL 750.520b(1)(f);
MSA 28.788(2)(1)(f), which establishes that an actor is guilty of
first-degree criminal sexual conduct if "[t]he actor causes
personal injury to the victim and force or coercion is used to
accomplish sexual penetration." Personal injury for purposes
of this legislation includes bodily injury or mental anguish, and
physical injuries for this purpose need not be permanent or
substantial. People v Himmelein, 177 Mich App 365,
376-377; 442 NW2d 667 (1989). To prove mental anguish, "the
prosecution is required to produce evidence from which a rational
trier of fact could conclude, beyond a reasonable doubt, that the
victim experienced extreme or excruciating pain, distress, or
suffering of the mind." People v Petrella, 424 Mich
221, 259; 380 NW2d 11 (1985). In reviewing this issue, we must
view the evidence in the light most favorable to the prosecution
to determine whether a rational trier of fact could find
defendant guilty beyond a reasonable doubt. People v Johnson,
460 Mich 720, 722-723; 597 NW2d 73 (1999).

Defendant cites People v Payne, 90 Mich
App 713; 282 NW2d 456 (1979), for the proposition that an injury
that supports one instance of first-degree CSC cannot support
additional counts stemming from subsequent penetrations. In Payne,
this Court ruled that where a beating supported an initial act of
first-degree CSC, that beating could not satisfy the personal
injury element, for purposes of CSC I, of subsequent forcible
penetrations. Id. at 718. Payne is not binding on
this panel. See MCR 7.215(H)(1).[2]

In People v Martinez, 190 Mich App 442,
445; 476 NW2d 641 (1991), however, this Court held that an
initial assault may by itself satisfy the personal injury element
of several penetrations occurring within ten minutes of the
assault, where there was no indication that the defendant
"intended to discontinue the attack during the entire
episode." See also People v Hunt, 170 Mich App 1, 8;
427 NW2d 907 (1988) ("The beating visited upon the
complainant immediately prior to the series of sexual
penetrations is sufficient to supply the element of personal
injury with respect to each of the subsequent penetrations so as
to support multiple convictions under MCL 750.520b(1)(f); MSA
28.788(2)(1)(f)." [Emphasis added]).

This case presents us with the question whether
any of the alleged penetrations were not simultaneously
accompanied by personal injury, and, if so, whether those
penetrations occurred under circumstances that nonetheless
connected them with personal injury that occurred earlier in the
course of the victims ordeal. The prosecution introduced
photographs indicating that complainant suffered cuts and
bruises, but we cannot determine from the trial record which
injuries were attributable to the events in Michigan, and which
occurred in Canada. We must therefore examine complainants
testimony regarding each incident.

Complainant testified that before the first
alleged penetration, defendant stated that he was going to
deliver her to his Mafia connections in New York, and that
complainant believed him. Complainant also reported that
defendant tied her hands so tightly that her fingers went numb.
Defendant then forced her legs apart to achieve vaginal
penetration. This evidence was sufficient to support a finding
that complainant was subjected to both personal injury and mental
anguish in connection with the first penetration.

With respect to the second penetration,
complainant testified that defendant overcame her resistance by
repeatedly striking her with an open hand, and again forcing her
legs apart and penetrating her vaginally. The open-hand slaps
supported a finding of physical injury. See People v Kraai,
92 Mich App 398, 402-403; 285 NW2d 309 (1979).

Prior to the third penetration, defendant
wrapped a necktie around complainants throat that prevented
her from breathing. When defendant stopped strangling her, he
again forced her to endure sexual intercourse. The degree of
strangulation that complainant reported supports a finding that
she suffered bodily injury. See Kraai, supra at
402-403. Further, complainant felt that defendant derived
amusement from overpowering her, which also supported a finding
that she suffered humiliation, or suffering of the mind.

We also conclude that the evidence was
sufficient to support a finding that complainant was subjected to
personal injury in connection with the fourth penetration.
Complainant testified that after the third penetration defendant
continued his threat to turn her over to the Mafia and that he
hurt her when he struck her on the leg with his fist and slapped
her in the face at least twice. Defendant then drove her in his
car and parked it behind a building, where he penetrated her
digitally and performed cunnilingus on her. The events leading up
to this sex act supported a finding of both bodily harm and
mental anguish.

Complainant testified that before the fifth
penetration, defendant left her tied up and strapped into his
vehicle while he registered for a motel room. Once in the room,
defendant told her that if she "behaved" he would take
her home the next morning. Complainant reported that, after about
twenty minutes in the room, defendant then asked her to perform
oral sex on him, which she did. Complainant emphasized that she
did so because she thought she was bargaining for her freedom.
Defendant thus reduced complainant to the role of a beggar. In
our view, a rational trier of fact could conclude that
defendants conditioning complainants freedom, if not
her life, on her performing a sexual act caused her distress and
suffering of the mind sufficient to satisfy the personal injury
element. Further, our reading of Hunt and Martinez,supra, indicates that we need not consider an act of
penetration in isolation. With respect to this fifth penetration,
we cannot ignore that this act occurred against a backdrop of
ongoing physical violence and psychological torment.

According to complainant, the events preceding
the sixth penetration included arguing, and that defendant also
repeated his threat to leave complainant a captive of the Mafia,
he also threatened her with a raised fist, and trapped her in a
small sauna bath for fifteen to twenty minutes despite knowing
that she was claustrophobic. Afterward, defendant pulled her out
of the sauna, threw her onto the bed, and forced her to have
intercourse. At the very least, complainants suffering of
the Mafia threat, and being forced to confront her claustrophobia
for a quarter hour, was evidence of mental anguish, and hence
personal injury.

V

The prosecutor alleged that defendant committed
six acts of sexual penetration, charged him with six counts of
CSC I, and set forth alternative theories to support each: MCL
750.520b(1)(c); MSA 28.788.(2)(1)(c) (sexual penetration
occurring during the commission of a felony) and MCL
750.520b(1)(f); MSA 28.788.(2)(1)(f) (actor uses force or
coercion to accomplish the sexual penetration and the victim
suffers physical injury). Notwithstanding the fact that the
prosecutor alleged only six acts of sexual penetration, the jury
convicted defendant on twelve counts of CSC I. Defendant asserts
that the twelve convictions constituted multiple punishments for
the same offense in violation of double jeopardy, US Const, Am V;
Const 1963, art 1, § 15. We agree.

In People v Bigelow, 229 Mich App 218;
581 NW2d 744 (1998), this Court concluded that separate
convictions and sentences for both premeditated murder and felony
murder, both of which arose from a single instance of criminal
conduct, violated the rule against double jeopardy. Id. at
220. The Court remedied the double-jeopardy problem by directing
the lower court to amend the judgment of sentence to reflect a
single conviction and a single sentence for a crime that was
supported by two separate theories. Id. at 221-222. We
likewise remand this case to the trial court so that it may amend
the judgment of sentence specifically to reflect that two
alternate theories supported each of six counts of first-degree
criminal sexual conduct. Accordingly, we further direct the trial
court to vacate six of defendants twelve sentences for CSC
I.

VI

Defendants final argument is that the
prosecution deprived him of his right to a speedy trial in not
securing defendants extradition until after he served his
sentence in Canada. From what we are able to ascertain from the
record, the United States initiated extradition procedures in
1989, but the Oakland County prosecutor did not finally arrange
for defendants extradition until April 1996, after
defendant served his Canadian sentence.

In this case, the delay between the events
underlying defendants conviction and his extradition was
approximately seven years. We consider the length of this delay
substantial. The reasons for the delay, however, mitigate our
concerns about its length. The court below noted that the Ontario
court ordered that defendants surrender occur only after
defendants full parole or release from imprisonment.

Article 7 of the extradition treaty provides as
follows:

When the person whose extradition is requested
is being proceeded against or is serving a sentence in the
territory of the requested State for an offense other than that
for which extradition has been requested, his surrender may be
deferred until the conclusion of the proceedings and the full
execution of any punishment he may be or may have been awarded.

In dicta contained in People v Donaldson,
103 Mich App 42, 46; 302 NW2d 592 (1981), this Court remarked
that the treaty does not require Canada to consent to a
defendants extradition until after the completion any
validly imposed Canadian sentence. The treaty involved in the
present case, however, did not apply in Donaldson,
however, because the underlying facts in the case occurred before
the effective date of the treaty. This Court therefore engaged in
an interpretation of both a Canadian statute and the predecessor
to the treaty at issue in this case, the Webster-Ashburton Treaty
of 1984, 8 Stat 572; TS 119, as supplemented by the Convention of
1889 between the United States and Great Britain, 26 Stat 1508;
TS 139. The Canadian statute, made applicable under the terms of
the Webster-Ashburton treaty, mandated that a Canadian
jurisdiction not surrender a person for extradition until after
the person was acquitted or his sentence expired. Id. at
47. This Court stated:

Under these circumstances, we are not inclined
to hold that the prosecutor was obligated to seek extradition of
defendant before expiration of his Canadian sentence. There was
no failure to afford a speedy trial in this case, where the
prosecutor moved for a trial promptly after the return of
defendant to Michigan. [Id.]

In this case, the Ontario authorities availed
themselves of their discretion under Article 7 of the treaty not
to surrender defendant until after defendants full parole
or release from imprisonment in Canada. The Oakland County
prosecutor secured defendants extradition after his release
in 1996. In our view, the instant case is indistinguishable from Donaldson.
We are mindful that Michigan prefers the speedy administration of
justice. However, the interests of justice do not militate in
favor of Michigans taking steps to truncate or otherwise
interfere with a Canadian courts execution of its own
criminal sentence. Further, defendant does not contend that the
delay prejudiced his ability to put on a defense or deprived him
of any civil liberties.[3] We

conclude that the prosecution did not deprive
defendant of his right to a speedy trial.[4]

Finally, defendant raises the 180-day rule of
MCL 780.131; MSA 28.969(1), and MCR 6.004(A) and (D). The
statutory version of the rule concerns "an untried warrant,
indictment, information, or complaint setting forth against any
inmate of a correctional facility in this state
. . . ." MCL 780.131(1); MSA 28.969(1)(1)
(emphasis added). Clearly defendants incarceration in
Canada does not implicate this legislation. Turning to the court
rule, MCR 6.004(A) states only the general principle that both
parties in criminal actions are entitled to a "speedy
resolution of all matters before the court," and subrule
(D)(1) states that the prosecutor must make a "good faith
effort to bring a criminal charge to trial within 180 days
. . . ." Subrules (D)(1)(a) and (b), however,
establish that the rule applies to persons incarcerated in a
"state prison" or detained in a "local
facility." The court rule thus also has no application to a
prisoner serving a sentence in a foreign country.

Affirmed and remanded for amendment of the
judgment of sentence. We do not retain jurisdiction.

[2]MCR 7.215(H)(1) only requires us
to follow the rule of law established in a published opinion
issued on or after November 1, 1990.

[3] Defendant asserts that he served his full sentence,
instead of being paroled, in part because he declined to take
advantage of rehabilitative services for fear that his
participation would create evidence that might be used against
him in Michigan. However, rehabilitative services in prison are a
privilege, not the prisoners right. See People v
Malmquist, 155 Mich App 521, 525-526; 400 NW2d 317 (1986). As
concerns defendants Canadian incarceration, he made a
strategic decision not to avail himself of the privilege of
sex-offender services. That defendant, by engaging in a course of
criminal behavior that involved Canada as well as Michigan,
placed himself in a position where he felt it best not to talk
candidly about his crimes while incarcerated in Canada, simply
does not persuade us to find that he suffered prejudice
attributable to this state.

[4] In the course of his argument, defendant asserts that
the Interstate Agreement on Detainers (IAD), MCL 780.601 et
seq.; MSA 4.147(1) et seq., provides that prisoners
are protected against unreasonable delays. Defendant does not
assert, let alone explain, that the agreement applies to Canada.
A party may not merely state a position and then leave it to this
Court to discover and rationalize the basis for the claim. In
re Hamlet (After Remand), 225 Mich App 505, 521; 571 NW2d 750
(1997); In re Toler, 193 Mich App 474, 477; 484 NW2d 672
(1992). Similarly, "[a] party may not leave it to this Court
to search for authority to sustain or reject its position." In
re Keifer, 159 Mich App 288, 294; 406 NW2d 217 (1987).
Further, defendant did not state a claim under the IAD as a
question raised on appeal, thus waiving it for appellate
consideration. Meagher v McNeely & Lincoln, Inc, 212
Mich App 154, 156; 536 NW2d 851 (1995). See also MCR 7.212(C)(5).
We therefore decline to consider the issue.

Defendant similarly points to Article 4(1)(ii)
of the extradition treaty with Canada, which provides that
extradition will not be granted "[w]hen the prosecution for
the offense has become barred by lapse of time according to the
laws of the requesting State." However, defendant does not
allege that the statute of limitations had run for the Michigan
offenses. Defendant also did not include the treaty question his
statement of the issue. We decline to address this question as
well. Moreover, as we stated earlier in this opinion, defendant
should have raised this issue in a Canadian tribunal.